Filed 2/15/13 P. v. Olmedo CA5
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ERNIE OLMEDO,
Defendant and
Appellant.
F063171
(Super.
Ct. No. RF005765A)
APPEAL
from a judgment of the Superior Court
of
William J.
Capriola, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury
convicted appellant, Ernie Olmedo, of felony child abuse (Pen. Code,
§ 273a, subd. (a)), and found true an enhancement allegation that, in
committing that offense, appellant personally inflicted great bodily
age of five years (§ 12022.7, subd. (d)).
The court imposed a prison term of seven years, consisting of the two-year
lower term on the substantive offense and five years on the accompanying
enhancement.
On appeal,
appellant contends the court erred (1) in denying his Wheeler/Batson
appellant’s failure to explain or deny adverse evidence. We affirm.
FACTS
Appellant
and Sarah Crosby met while they were both in the Navy and stationed in Norfolk,
Virginia.
was separated from his wife and, in 2007, Crosby became
pregnant. E., the son of appellant and Crosby,
was born in February 2008 in Virginia. Appellant, who by then was stationed in California,
was not present for the birth. Crosby
spoke to appellant by telephone before and after giving birth, but appellant
did not come to Virginia to see
E. Appellant did not meet E. until May
2009, when Crosby brought E. to visit appellant in Ridgecrest,
California.
At that time, Crosby and appellant were “back in a relationship.â€
Crosby
was scheduled to be deployed in January 2010, and she and appellant agreed that
he would take care of E. during Crosby’s
deployment. On November 1, 2009,
where E. had been staying with Crosby’s mother while Crosby
prepared for the change of her “home port†from Virginia
to California. They picked up E. and drove to Ridgecrest
together, arriving on November 9. Crosby
left on November 21 and returned to Virginia. When she left Ridgecrest,
E. was in “good†condition. He was
“chunky and happy and playful.â€
Approximately
nine or ten days after she left Ridgecrest,
appellant informed her by telephone that E. was vomiting “a lot.†E. had never been prone to vomiting
before. Crosby
pressed appellant for an explanation as to why E. was throwing up, but
appellant responded he did not know. At
one point, appellant told Crosby he had taken E. to a hospital emergency room,
but left without E. being seen by a doctor because, appellant told her, “he was
there too long.â€
Crosby
flew to California, arriving on
the night of December 25, and appellant picked her up in Los
Angeles the next day.
E. was with him. The boy was
pale, very thin, had no energy, had dark circles under his eyes and smelled of
vomit. They drove back to appellant’s
house in Ridgecrest.
The house
was not in the same condition as when Crosby had
left. It smelled like “dog†and “crap,â€
the carpets were soiled, there was virtually no food in the house and the
refrigerator contained spoiled milk and mildewed food. Crosby cleaned the
house.
On
December 28, Crosby took E. to the emergency room
at Ridgecrest Regional
Hospital. She was concerned because E. had slept for 15
hours and then vomited when he woke up.
E. was diagnosed with severe constipation. Crosby was instructed
to give him stool softeners and rehydration fluids.
On
December 29 at approximately 4:43 p.m.
Crosby went out to run errands. A few minutes later she received a text
message from appellant saying he wanted to give E. a bath. Crosby responded that was fine. She was in the midst of her first errand, at
the grocery store, when she received a telephone call from appellant telling
her he was at the emergency room with E.
Crosby went to the emergency room and met appellant, who told her E. had
fallen from the bathroom counter. After
being treated in the emergency room, E. was transported to Loma Linda Hospital
in San Bernardino.
City of
Ridgecrest Police Detective Manuel Castaneda testified that he questioned
appellant on January 5, 2010, at which time appellant stated the
following: After Crosby left the house,
appellant, while changing E.’s diaper, decided to bathe E. by taking a shower
with him. Appellant took E. into the
bathroom, set him on the corner of the sink, turned on the water in the shower
and left the bathroom to get clothes for E. and him. When appellant returned to the bathroom
approximately three minutes later, he found E. lying on the floor, between the
toilet and the sink, his eyes partially open and his pupils crossed. Appellant called E.’s name but he did not
respond. Appellant picked up E., ran
outside the bathroom and saw his roommate, Sonny, and told Sonny they had to go
to the emergency room. They got in the
car and Sonny drove there.
Dr. Stanford
Shu testified to the following. He is a
pediatrician with a specialty in neurology.
He treated E. at Loma Linda Hospital.
An MRI scan of E.’s head, done on December 30, showed that E. had
suffered various brain injuries, including damage to the frontal lobe and
subdural bleeding. Dr. Shu opined
that the frontal lobe injury occurred between 15 minutes and 10 days prior to
the MRI. He further opined that the
subdural bleeding could have been caused by rotational trauma. “[S]haking … can … be considered†a
rotational trauma. “[I]n [his]
experience,†a three-foot fall would not cause the “level of trauma†suffered
by E. “Typically,†the kind of brain
injuries suffered by E. “require[] a fall of greater than ten feet.â€
Dr. Shu
also reviewed an “MR spectroscopy†which showed other brain injuries. He opined as follows: It was “more likely†these injuries were
caused by rotational trauma than by blunt force trauma; “[g]enerally,†such
injuries would not be caused by a three-foot fall; and it was “very unlikelyâ€
E.’s injuries were caused by a three-foot fall.
Dr. Mark Massi
testified to the following. He is a
forensic pediatrician. He treated E. in
December 2009 and January 2010. He
opined that E.’s injuries were caused by some sort of trauma on or around
December 29 and were “[not] consistent with a three-foot fall from this
countertop onto [the] floor.†E.’s
subdural bleeding was consistent with “acceleration-deceleration injury,†i.e.,
injury caused by the “repetitive accelerating and decelerating of the head as
it moves through space,†as where “the body [is] being held and
shaken ….†E. suffered retinal
hemorrhages, the pattern of which is seen only in “catastrophic traumas like
crush injuries†and child abuse.
Dr. Ronald
Gabriel, called by the defense, testified that he is a pediatric
neurologist. He opined as follows: It is “virtually impossible†to cause
significant head injury by shaken acceleration alone, unless the force is great
enough to also break the neck. E.’s
injury “was an impact injury without question.â€
E.’s injuries were “perfectly compatible†with a short fall. Children who have tipped over while using a
walker and fallen a maximum of two feet have suffered bleeding in the brain
leading to death. “Striking a child’s
head with a knuckle … is highly unlikely to cause brain bleeding†unless the
force used is equal to a “terrific blow … by a professional fighter.â€
Appellant
testified that he recalled on one occasion “giving [E.] a knuckle to the headâ€
in order to get his attention when E. was struggling as appellant tried to get
him into a car seat, “but even then it wasn’t that hard because he didn’t
cry.†Appellant also testified he
recalled only two occasions when he shook E.
On one occasion, when E. was not obeying, appellant “grabb[ed] him by
the shoulders, … and in a stern voice [told] him to knock it off.†E. was crying, but that was because appellant
“yelled at him, not at the fact that [he] put [his] hands on [E.’s] shoulders
and scolded him.†On another occasion,
when E. persisted in throwing his food, appellant “put[] one hand on his
shoulder, [and] another hand on his shirt,†and again told him to stop.
DISCUSSION
1. Claim of
“[The
California Supreme Court] held in [Wheeler,
supra,] 22 Cal.3d 258, 276-277, ‘that
the use of peremptory challenges to remove prospective jurors on the sole
ground of group bias violates the right to trial by a jury drawn from a
representative cross-section of the community under article I, section 16, of
the California Constitution.’ In [
a prosecutor’s use of peremptory challenges to excuse prospective jurors ‘on
account of their race’ may violate the equal protection clause of the
Fourteenth Amendment to the federal Constitution.†(People
v. Jones (1997) 15 Cal.4th 119, 159,
overruled on another point in People v.
Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Hispanics are a cognizable group for purposes of both
here, appellant contends and the People do not dispute that of the four
prospective jurors who had been peremptorily challenged by the prosecution at
the time of the motion, two, E.L. and M.G., were Hispanic.
The burden
is on the party claiming Wheeler/Batson
error to make a prima facie showing that the peremptory challenges had been
exercised in violation of the Constitution.
(Johnson v. California (2005)
545 U.S. 162, 168.) Appellant argues
that the trial court erred “in failing to find that appellant had established a
prima facie case of race-based discrimination in the exercise of peremptory
challenges against [Prospective Jurors E.L. and M.G.].â€
A. Background
On
March 17, 2011, the prosecutor used a peremptory challenge to excuse
Prospective Juror E.L. from the jury. On
March 21, 2011, when jury selection resumed, the prosecutor peremptorily
challenged Prospective Juror M.G., at which point defense counsel stated he
wanted to make a motion. An unreported
sidebar conference was held, after which jury selection resumed.
At the next
recess, the court noted that during the previous sidebar conference defense
counsel presented a Wheeler/
to “make a statement.†Counsel
responded, “The Defense makes a Batson-
peremptory challenges ….†In
support of the motion, defense counsel stated appellant was Hispanic, as were
Prospective Jurors M.G. and E.L.; the prosecutor had, at that point in the jury
selection process, exercised two of her four peremptory challenges against
Hispanic prospective jurors; “[t]he majority of the remaining panel have been
mainly Anglosâ€; E.L.’s answers to questions on voir dire demonstrated she was
“unbiased†and could be fair and neutral; and similarly, M.G.’s answers indicated
she “could be fair, unbiased.†Defense
counsel asserted, “there is an inference based on two out of four jurors that
[the prosecutor] is excluding Hispanics from the jury pool because of their
racial makeup ….â€
The court
acknowledged that the defense had made a Wheeler/Batson
motion during the sidebar conference, and stated:
“I determined and ruled at sidebar and now state that I
did not find a prima facie showing under the totality of circumstances that
would support the motion. [Appellant]
and the challenged jurors may be said to be members of a cognizable group, that
is, Hispanics …. At this point in
the proceedings, I don’t see any particular group overtones to the case before
the Court at this time. I was unable to
determine whether many or all of the members of an identified group from the
jury panel were challenged because the only other reference was one juror,
Ms. [L.], and I did not find that there was a disproportionate number of
peremptory challenges used against members of the group. The Prosecution had only exercised four
challenges, and … the others were not part of this alleged group. So that was the basis of my ruling at that
time.â€
The court
then asked the prosecutor if she “wish[ed] to say anything.†The prosecutor responded, “Since the Court
didn’t find a prima facie showing, I’m not going to comment as to my neutral
reasons for why I chose to use peremptories on those two jurors.†The prosecutor then “noted for the recordâ€
the makeup of the jury panel by gender, and stated further, “There is currently
a Hispanic woman seated in juror seat No. 2. No peremptory challenge has been exercised
against her.†Neither the court nor
defense counsel disputed the prosecutor’s statements regarding the makeup of
the jury panel.
B. Other Applicable Legal
Principles
A party
“make[s] out a prima facie case ‘by showing that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.’†(Johnson
v. California, supra, 545 U.S. at
p. 168; see also People v. Bonilla
(2007) 41 Cal.4th 313, 341 (Bonilla)
[defendant must show inference of discrimination arising from totality of
relevant facts].) A party “should make
as complete a record of the circumstances as is feasible.†(Wheeler,
supra, 22 Cal.3d at p. 280.) Only if a party makes the required prima
facie showing does the process move to the second stage in which “‘the “burden
shifts to the State to explain adequately the racial … exclusion†by offering
permissible race-neutral … justifications for the strikes.’†(Bonilla,
supra, at p. 341.) In the third stage, “‘“if a race-neutral …
explanation is tendered, the trial court must then decide … whether the
opponent of the strike has proved purposeful … discrimination.†[Citation.]’â€
(Ibid.)
“In
deciding whether a prima facie case was stated, we consider the entire record
before the trial court [citation], but certain types of evidence may be
especially relevant: ‘[T]he party may
show that his opponent has struck most or all of the members of the identified
group from the venire, or has used a disproportionate number of his
peremptories against the group. He may
also demonstrate that the jurors in question share only this one
characteristic—their membership in the group—and that in all other respects
they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when
appropriate by such circumstances as the failure of his opponent to engage
these same jurors in more than desultory voir dire, or indeed to ask them any
questions at all. Lastly, … the
defendant need not be a member of the excluded group in order to complain of a
violation of the representative cross-section rule; yet if he is, and
especially if in addition his alleged victim is a member of the group to which
the majority of the remaining jurors belong, these facts may also be called to
the court’s attention.’†(
“The trial
court’s determination that no prima facie showing of group bias has been made
is subject to review to determine whether it is supported by substantial
evidence.†(People v. Jenkins (2000) 22 Cal.4th 900, 993.) “Since the burden of proof is on the moving
party, it is axiomatic that when a trial court denies a Wheeler motion without finding a prima facie case of group bias,
the showing reviewed on appeal is that made by the moving party to the trial
court. [Citation.] ‘The focus of the prima facie inquiry “is on
the objecting party’s contentions and the record.â€â€™â€ (People
v. Trevino (1997) 55 Cal.App.4th 396, 404.)
“Because of
the trial judge’s knowledge of local conditions and local prosecutors, powers
of observation, understanding of trial techniques, and judicial experience, we
must give ‘considerable deference’ to the determination that [the defendant]
failed to establish a prima facie case of improper exclusion. [Citation.]â€
(People v. Wimberly (1992) 5
Cal.App.4th 773, 782.) “[T]he law
recognizes that a peremptory challenge may be predicated on a broad spectrum of
evidence suggestive of juror partiality.
The evidence may range from the obviously serious to the apparently
trivial, from the virtually certain to the highly speculative.†(Wheeler,
supra, 22 Cal.3d at p. 275.) Counsel may develop a distrust for a
potential juror’s objectivity “‘on no more than the “sudden impressions and
unaccountable prejudices we are apt to conceive upon the bare looks and
gestures of another†[citation].’†(
1215-1216; accord, People v. Turner
(1994) 8 Cal.4th 137, 171, disapproved on another ground in
555, fn. 5.) “‘Jurors may be excused
based on “hunches†and even “arbitrary†exclusion is permissible, so long as
the reasons are not based on impermissible group bias.’ [Citations.]â€
(People v. Watson (2008) 43
Cal.4th 652, 670.)
C. Contentions and Analysis
Here, the
record reveals that appellant based his Wheeler/Batson
motion on the following: (1) he is
Hispanic, (2) of the four prospective jurors challenged by the prosecutor at
the time of his motion, two were Hispanic; (3) “[t]he majority of the remaining
panel [i.e., the panel remaining after Prospective Juror M.G. was excused]
[were] mainly Anglosâ€; and (4) the answers of the two challenged Hispanic
prospective jurors to questions posed on voir dire showed that both were
unbiased and could fairly perform their duties as jurors. These factors were not sufficient to
establish a prima facie case of group bias.
The fact
that appellant and Prospective Jurors E.L. and M.G. are Hispanic supports an
inference of discrimination but is not dispositive. (People
v. Thomas (2012) 53 Cal.4th 771, 794.)
Nor is appellant’s cause advanced by the fact that, as appellant points
out, 50 percent of the prosecutor’s peremptory challenges—two of four—were
directed at Hispanic prospective jurors.
As our Supreme Court stated in Bonilla
in rejecting a Batson-
peremptorily challenged 100 percent of the African-Americans in the jury
pool—two of two—“‘the small absolute size of this sample makes drawing an
inference of discrimination from this fact alone impossible. “[E]ven the exclusion of a single prospective
juror may be the product of an improper group bias. As a practical matter, however, the challenge
of one or two jurors can rarely suggest a pattern
of impermissible exclusion.â€â€™â€ (
In
addition, we note that the record shows the following: At the time of the motion, the prosecutor
noted that one female Hispanic venireperson was seated in the jury box and had
not been challenged; neither the court nor the defense challenged this claim;
subsequently, the prosecutor accepted the panel three times; and the only
female Hispanic-surnamed prospective juror peremptorily challenged by the
prosecution following the court’s ruling on the Wheeler/Batson motion was added to the panel after the court’s ruling.
Thus, it appears that at least one Hispanic person served on the jury,
and “[a]lthough the circumstance that the jury included a member of the
identified group is not dispositive [citation], ‘it is an indication of good
faith in exercising peremptories …’ and an appropriate factor to consider
in assessing a Wheeler/
v. Clark (2011) 52 Cal.4th 856, 906; accord, People v. Cornwell (2005) 37 Cal.4th 50, 69-70, disapproved on
another point in People v. Doolin
(2009) 45 Cal.4th 390, 420, fn. 22 [no inference of bias in excusing one of two
African-American prospective jurors, given that the other African–American
prospective juror was passed repeatedly by prosecutor and sat on jury].)
We turn now
to an examination of the responses of Prospective Jurors E.L. and M.G. to
questions posed to them during voir dire.
E.L. indicated the following: She
had been employed as a “[r]ecords analyst†at Wasco State Prison for 20 years;
she “audit[ed] inmate files.†She had no
“associations†with correctional officers, and except for “a few [inmates] that
come through screening,†she had “no real contact†with inmates. There was nothing about her employment that
caused her “to think [she would be] less than fair ….†She had served on three juries, each of which
reached a verdict. She would be fair, and
she would “follow the law.â€
Prospective
Juror M.G. indicated she worked as a “packerâ€; her husband worked in
maintenance; she has two daughters, ages 19 and 25, and a 15-year-old son; she
had served on a jury in a criminal case and the jury reached a verdict; and she
could be fair.
The
following exchange with the prosecutor, appellant argues, demonstrates the
prosecutor’s racial bias:
“Q. [Prosecutor] Is [your son] your baby?
“A. [Prospective Juror M.G.] Baby.
“Q. Do you feel kind of protective of him
because he is the baby?
“A. Yes.
“Q. Did he ever get in any trouble in life? And I don’t necessarily mean any criminal
trouble.
“A. Nothing so far. He’s been a good boy so far.
“Q. How old is he?
“A. He’s 15.
“Q. Okay.
Anybody ever say something bad about your son? A schoolmate or a teacher disagreed? And it doesn’t have to be this huge thing.
“A. Well, maybe when he was in first grade
when he was a real—you know, a clown. He
used to make the kids laugh and stuff.
“Q. Did he get in trouble for it?
“A. Oh, yes.
“Q. And how did you go about handling that?
“A. Oh, well, I took some games away from him
that he liked playing or stuff like that.
It was something pretty simple.
“Q. [Defense counsel] brought up the—all the
Ps again, the five Ps. I talked to
everybody last week about the trifecta, which is: Did it.
Feel bad about it. But I don’t
think there should be any penalty for it.
“A. Yes.â€
(Italics added.)
At this
point, the court sustained a defense objection, after which the questioning
continued:
“Q. Do you think there’s anything about
[appellant]’s appearance that, sitting here right now, you don’t think you
could be fair? You just look at him and
think, ‘I just think the D.A.’s office is up to their old tricks again’?
“A. No.
“Q. So you don’t come into the courtroom with
any of that perception?
“A. No.â€
Appellant
argues that the italicized portion of the voir dire quoted above establishes
the overt racial bias of the prosecutor because “[t]he only reasonable
explanation†for asking Prospective Juror M.G. whether appellant, who was 29
years old,
appellant and her son are both Hispanic.â€
Appellant further argues: “This
conclusion is all the more obvious given that the prosecutor did not engage in
similar questioning with any of the other veniremembers.â€
As to the
latter point, which requires that we compare the prosecutor’s questioning of
Prospective Juror M.G. with that of other prospective jurors, the following
statement by our Supreme Court in Bonilla
is instructive:
“[T]his is a ‘first-stage’ Wheeler/Batson case, in
that the trial court denied Bonilla’s motions after concluding he had failed to
make out a prima facie case, not a ‘third-stage’ case, in which a trial court
concludes a prima facie case has been made, solicits an explanation of the
peremptory challenges from the prosecutor, and only then determines whether the
defendant has carried his burden of demonstrating group bias…. Whatever use comparative juror analysis might
have in a third-stage case for determining whether a prosecutor’s proffered
justifications for his strikes are pretextual, it has little or no use where
the analysis does not hinge on the prosecution’s actual proffered rationales,
and we thus decline to engage in a comparative analysis here.†(Bonilla,
supra, 41 Cal.4th at p. 350.)
We, too, decline to engage in comparative juror analysis, in
this first-stage case.
Further we
reject appellant’s claim that the only reasonable interpretation of the
prosecutor’s comments is that she challenged Prospective Juror M.G. solely
because she was Hispanic. This claim may
not be raised on appeal because it was not a basis for appellant’s motion at
trial. (People v. Trevino, supra,
55 Cal.App.4th at p. 404 [in Wheeler/Batson
context, when trial court finds no prima facie showing of discrimination, the
showing reviewed on appeal is that made by moving party in trial court];
Cal.App.4th 666, 673, fn. 4.) And, in any
event, it is without merit. The age
difference notwithstanding, another reasonable explanation for the challenged
questioning is that the prosecutor may have been concerned that Prospective
Juror M.G., the mother of a son who had gotten into some minor trouble, would
be favorably disposed to the plight of another mother’s son in trouble of a far
more serious sort.
Appellant’s
claim that nothing in the responses of the challenged venirepersons indicates
they could be less than fair was raised below and therefore may be raised on
appeal. However, although the responses
of Prospective Jurors M.G. and E.L. may not suggest a reason for a challenge,
by the same token we note that nothing in the record suggests any racially
discriminatory reasons for the questioned peremptory challenges. In People
v. Thomas, our Supreme Court found that “Although no obvious reason appears
why the prosecutor would have chosen to strike [two African-American
venirepersons peremptorily challenged by the prosecutor], the absence of a
reason that is apparent on the record does not, in the context of all the other
circumstances, suggest that the reason was race. Here, ‘the prosecution’s pattern of excusals
and acceptances during the peremptory challenge process reveals no obvious discrimination
…’ against African–American jurors.†(
37 Cal.4th at p. 70 [“circumstance that the juror was not subject to exclusion
for cause certainly did not support an inference that the exercise of a
peremptory challenge against her was motivated by group biasâ€]; but see
781, 789 [where prosecutor excluded every African-American male examined on
voir dire—total of three—and record showed legitimate reasons for peremptory
challenge of two of them, defense nonetheless made out prima facie case of
discrimination on voir dire by showing there was “no apparent, legitimate
reason to exclude†the third African-American male venireperson].) Here, too, no obvious reason appears why the
prosecutor chose to have Prospective Jurors E.L. and M.G. removed from the
jury. However, “in the context of all
the other circumstances†(People v.
Thomas, supra, at p. 795),
notably the prosecutor’s acceptance of the panel with at least one Hispanic
juror, the record does not suggest the prosecutor acted based on impermissible
discriminatory reasons. On this record,
we conclude that the totality of the facts did not give rise to an inference of
discrimination.
2. Claim of Instructional
Error
The trial
court instructed the jury pursuant to CALCRIM No. 361 as follows:
“If [appellant] failed in his testimony to explain or
deny evidence against him, and if he could reasonably be expected to have done
so based on what he knew, you may consider his failure to explain or deny in
evaluating that evidence. Any such
failure is not enough by itself to prove guilt.
The People must still prove each element of the crime beyond a
reasonable doubt. [¶] If
[appellant] failed to explain or deny, it is up to you to decide the meaning
and importance of that failure.â€
Appellant contends this instruction was given in error
because, he asserts, he “did not fail to explain or deny any evidence against
him which he could reasonably have been expected to deny or explain because of
facts within his knowledge.â€
The People
disagree and point to appellant’s testimony as to the following: He had been taking E. to “naval base
doctors,†but on December 18 he became dissatisfied with the care E. was
receiving and took E. to Ridgecrest Regional Hospital. However, he left before E. could be seen by a
doctor because he and E. had been there “for some time†and he (appellant)
“didn’t believe [they] were getting appropriate service ….†E. continued to have trouble with vomiting
over the next several days, yet appellant did not take him to a doctor, and E.
did not see a doctor until Crosby took him to the hospital on
December 28. The People argue that appellant
failed to explain why he did not take E. to a doctor in the period from
December 18 through December 28, despite the child’s ongoing problems
with vomiting during that period, and that therefore giving CALCRIM
No. 361 was proper.
“[T]he test
for giving the instruction [on a defendant’s failure to explain or deny
evidence against him or her] is not whether the defendant’s testimony is
believable. [The instruction] is
unwarranted when a defendant explains or denies matters within his or her
knowledge, no matter how improbable that explanation may appear.†(People
v. Kondor (1988) 200 Cal.App.3d 52, 57.)
indicated on direct examination that although E. was vomiting during the period
in question, appellant “[thought he] had it under control,†and that “[E.]
looked okay. He was playing with the
kids.†Appellant indicated that “[o]ther
than the throwing up and stuff,†E. “seemed okay.†However, even if we were to conclude that the
foregoing testimony constitutes an explanation of appellant’s failure to get
medical attention for E. after December 18, and that therefore CALCRIM
No. 361 should not have been given, we would not reverse the judgment.
In
assessing whether the erroneous giving of CALCRIM No. 361 is prejudicial,
we apply the harmless error standard adopted in People v. Watson (1956) 46 Cal.2d 818, 836. (People
v. Saddler (1979) 24 Cal.3d 671, 681-683 [applying Watson standard to erroneous giving of CALJIC No. 2.62];
1463, 1471 [same].) Thus, the relevant
inquiry is whether it is “reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error.†(Watson,
supra, at p. 836.) When we apply this standard, we conclude, for
a number of reasons, that any error in instructing the jury with CALCRIM
No. 361 was harmless.
First, the
court instructed pursuant to CALCRIM No. 200 that “[s]ome of these
instructions may not apply depending on your findings about the facts of the
case. Do not assume just because I give
a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.†As the court stated in People v. Lamer, supra,
110 Cal.App.4th at page 1472, “courts have noted that the fact that juries are
instructed, pursuant to CALJIC No. 17.31, to ‘disregard any instruction
which applies to a state of facts which you determine does not exist,’ …
mitigates any prejudicial effect related to the improper giving of CALJIC
No. 2.62.†CALCRIM No. 361
does not apply unless the jury finds that the accused unreasonably failed to
explain or deny evidence against him.
If, as appellant maintains, the evidence did not support that
preliminary finding, the jury would presumably have followed CALCRIM
No. 200 and disregarded the challenged instruction. (People
v. Yeoman (2003) 31 Cal.4th 93, 139 [jurors are presumed to understand and
follow instructions]; People v. Sanchez
(2001) 26 Cal.4th 834, 852 [same].)
Second,
portions of the challenged instruction are favorable to the accused. CALCRIM No. 361 states that a
defendant’s failure to deny incriminating evidence does not by itself prove
guilt, and that the prosecution must still prove each element of the crimes
beyond a reasonable doubt. (Cf.
No. 2.62 that were favorable to defendant].)
Finally, at
no time during closing argument did the prosecutor refer to appellant’s failure
to explain why he did not get medical attention for E. after
December 18. (Cf.
No. 2.62 harmless, in part because prosecutor did not refer in closing
argument to defendant’s failure to explain adverse evidence].)
On this
record, it is not reasonably probable that a jury would have reached a result
more favorable to appellant in the absence of the giving of CALCRIM
No. 361.
DISPOSITION
The
judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
WISEMAN, Acting P.J.
________________________________
LEVY, J.
name="_ftn1" title="">[1]See People v. Wheeler (1978) 22 Cal.3d 258 (
name="_ftn2" title="">[2]Except
as otherwise indicated, our factual statement is taken from Crosby’s testimony.
